[Cite as State v. Jackson,

.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-190676 TRIAL NO. B-1901479 Plaintiff-Appellee, : O P I N I O N. vs. :

JACKIE JACKSON, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: February 26, 2021

Joseph T. Deters, Hamilton County Prosecuting Attorney, and H. Keith Sauter, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

W INKLER , Judge.

{¶1} Following no-contest pleas, defendant-appellant Jackie Jackson was

convicted of one count of having weapons while under a disability under R.C.

2923.13(A)(2), one count of carrying concealed weapons under R.C. 2923.12(A)(2),

and one count of improperly handling firearms in a motor vehicle under R.C.

2923.16(B). He now appeals, and in his sole assignment of error, he contends that

the trial court erred in overruling his motion to suppress evidence found in his car.

He argues that (1) the police did not have a reasonable and articulable suspicion to

stop his vehicle, (2) there was not reasonable suspicion or concern for officer safety

to justify removing Jackson from his vehicle or searching his vehicle, and (3) the

plain-view exception to the warrant requirement did not apply. We find no merit in

his arguments, and we affirm his convictions.

{¶2} The only evidence presented at the hearing on the motion to suppress

was the video footage from three police officers’ body cameras. It shows that on

March 19, 2019, Cincinnati police officers stopped Jackson’s car for a window-tint

violation. Two officers approached the driver’s side of the vehicle. Jackson was the

only occupant, and the driver’s side window was open. One of the officers asked

Jackson to turn off his car so that he would not drive away. Jackson questioned the

reason for the stop and protested that he would not drive away. The officer

explained that Jackson was pulled over for a window-tint violation, and Jackson

seemed surprised. The windows were never tested because none of the officers had a

window-tint meter.

{¶3} The officers asked Jackson for his identification. Jackson did not

attempt to get his identification right away, but instead continued doing something

2 OHIO FIRST DISTRICT COURT OF APPEALS

with his cell phone. He later said that he was turning on his camera so he could

record his interactions with the police. He also questioned why so many officers had

responded to a window-tint violation.

{¶4} The officer who first approached the car told Jackson that if he did not

give them his identification, they would get him out of the car. The officer then

opened Jackson’s door and demanded that he step out of the vehicle. When Jackson

got out of the car, he had a can of Red Bull in his hand. The officer took it from him

and set it on the windshield.

{¶5} Another officer tugged at Jackson’s clothing from behind to move him

to the rear of his car. The officers instructed Jackson to put his hands on his head,

and they patted him down for weapons. They explained to him why it was important

for him to produce his identification immediately when asked. Jackson produced his

identification and explained that his insurance information was on his cell phone.

{¶6} The officer who opened the driver’s side door did not close it after

Jackson got out of the vehicle. He reached into the vehicle twice, first to remove the

keys from the ignition, and second, to put the can of Red Bull into a cup holder.

Nothing incriminating was visible at that time.

{¶7} When the first officer walked away from the car, another officer

approached the driver’s side of the car while the door was still open, and began

looking inside with a flashlight. The officer saw the marijuana cigarette sitting on the

floor on the side of the driver’s seat. The discovery of the marijuana cigarette

prompted a full search of the vehicle. Police found a bin full of clothing in the back

seat. Inside the bin, the police found a handgun, and they also found small amounts

of marijuana in the pockets of the clothing.

3 OHIO FIRST DISTRICT COURT OF APPEALS

{¶8} Appellate review of a motion to suppress presents a mixed question of

law and fact. We must accept the trial court’s findings of fact as true if competent,

credible evidence supports them. But we must independently determine whether the

facts satisfy the applicable legal standard. State v. Burnside,

,

,

; State v. Houston, 1st Dist. Hamilton No. C-

190598,

. Because the trial court made no findings of fact in

this case, we directly examine the record to determine whether there was sufficient

evidence to show that the trial court’s decision was supported by the record and

legally justified. See State v. Shield, 1st Dist. Hamilton No. C-100362, 2011-Ohio-

1912, ¶ 9.

{¶9} First, Jackson takes issue with the stop of his vehicle, but Jackson

waived the issue at the hearing on the motion to suppress. Jackson’s counsel stated,

“Mr. Jackson questioned why he was pulled over for the window tint, and it was

interesting that there was a lot of conversation if anyone had a meter, whether it was

probable cause. But I’m not questioning the stop. Officers are allowed to make, you

know, reasonable mistakes.”

{¶10} Waiver is the “intentional relinquishment or abandonment of a known

right.” State v. Rogers,

,

,

.

Although Jackson raised the issue in his motion to suppress, he relinquished his

right to challenge the stop in open court. See State v. Dotson, 1st Dist. Hamilton No.

C-170214,

. Further, because he abandoned the issue, he is

precluded from raising it now, even under a plain-error analysis. See State v. Ulmer,

1st Dist. Hamilton Nos. C-190304, C-190305 and C-190306,

.

{¶11} Next, Jackson argues that the police officer’s order for him to get out of

his vehicle violated his Fourth Amendment rights. In State v. Evans,

OHIO FIRST DISTRICT COURT OF APPEALS

405,

(1993), the Ohio Supreme Court followed Pennsylvania v.

Mimms,

,

,

(1977), and held that a police

officer may order a motorist to get out of a car that has been properly stopped for a

traffic violation, even without a suspicion of criminal activity. The court referred to

this type of order as a Mimms order. Evans at 407-408. “[T]he order to step out of

the vehicle is not a stop separate and distinct from the original traffic stop. It is so

minimal and insignificant an intrusion that the Mimms court refused to apply the

requirements of an investigatory stop.” Id. at 408.

{¶12} Though the Ohio Supreme Court modified Evans on other grounds in

State v. Lozada,

,

(2001), it did not change that

rule. Further, this court has held that where a police officer had lawfully stopped a

driver for a window-tint violation, he could properly order the driver to get out of his

van. See State v. Leonard, 1st Dist. Hamilton No. C-060595,

.

Consequently, Jackson’s Fourth Amendment rights were not violated when the

officers ordered him to get out of the car. See Houston, 1st Dist. Hamilton No. C-

190598,

; State v. Emmons, 1st Dist. Hamilton No. C-

150636,

.

{¶13} Jackson contends that the pat-down search of his person was

improper. We need not address that issue because no evidence was discovered as a

result of that pat-down. Further, it was not part of the chain of events that led to the

search of the car. See State v. Comp,

,

, ¶ 17-21 (5th

Dist.).

{¶14} Finally, Jackson contends that the search of the car was not justified

by the plain-view exception to the warrant requirement. The warrantless seizure by

a law enforcement officer of an object in plain view does not violate the Fourth

5 OHIO FIRST DISTRICT COURT OF APPEALS

Amendment if (1) the officer did not violate the Fourth Amendment in arriving at the

place from which the object could be plainly viewed, (2) the discovery of the evidence

was inadvertent, and (3) its incriminating nature was immediately apparent. State v.

Williams,

,

(1978), paragraph one of the syllabus;

State v. Mitchem, 1st Dist. Hamilton No. C-130351,

.

{¶15} The thrust of Jackson’s argument is that the police were not lawfully in

a place they were permitted to be because they had improperly ordered Jackson out

of his car. But, that argument is incorrect since the police officer’s order to Jackson

to get out of the car did not violate his Fourth Amendment rights.

{¶16} The video shows that the officer who found the marijuana cigarette

just walked up to the car and looked in. The cigarette was plainly visible, and its

incriminating nature was readily apparent. See State v. Wilson, 1st Dist. Hamilton

No. C-170408,

; Mitchem at ¶ 11-12.

{¶17} Jackson contends the plain-view exception might apply if he had left

his car door open upon voluntarily exiting from the vehicle. He argues that because

the police ordered him out of the car and the police officers left the car door open,

the marijuana cigarette was not in plain view. We find that to be a distinction

without a difference. Because the police officers were legally in a place where they

could see the marijuana cigarette in plain view, no Fourth Amendment violation

occurred. See State v. Johnson, 2d Dist. Montgomery No. 23781,

, ¶

8; State v. Clark, 8th Dist. Cuyahoga No. 83480,

.

{¶18} Once the police officers saw the marijuana cigarette, they had probable

cause to believe that the car contained contraband, and they were justified in

conducting a warrantless search of the car under the automobile exception to the

warrant requirement. See Houston, 1st Dist. Hamilton No. C-190598, 2020-Ohio-

6 OHIO FIRST DISTRICT COURT OF APPEALS

5421, at ¶ 66; Wilson at ¶ 11. They also had probable cause to believe the containers

inside the car contained contraband, justifying the search of the bins in the back seat.

See Wyoming v. Houghton,

,

,

(1999); In re L.S., 1st Dist. Hamilton No. C-150526,

.

{¶19} Consequently, we hold that the trial court did not err in overruling

Jackson’s motion to suppress. We overrule his sole assignment of error and we

affirm the trial court’s judgment.

Judgment affirmed.

B ERGERON , P.J., and C ROUSE , J., concur.

Please note: The court has recorded its own entry this date.

7